Becoming A Law Guardian: A Guide For New Jerseyans

In the state of New Jersey, a law guardian is a specially trained lawyer chosen by a judge to represent the best interests of a child in court when their parents are unable to care for them. Law guardians are responsible for presenting the child's wishes to the judge, protecting their interests, and helping them understand their legal rights.

To become a law guardian in New Jersey, one must be a licensed attorney and have standing, meaning they must have a meaningful relationship with the child, such as a friend or family member. Additionally, they should be familiar with the state's guardianship laws and procedures, which can be complex and ever-changing.

The process of becoming a law guardian typically involves filing a petition with the court, proving the child's incapacity, and demonstrating a commitment to advocating for the child's needs and preferences. It is important to note that law guardians are held to strict confidentiality standards to protect the child's privacy.

Understanding the role of a law guardian

A law guardian is a specially trained lawyer chosen by a judge to represent a child in court. Law guardians are appointed in child welfare cases where there are allegations of abuse, neglect, or possible termination of parental rights.

The role of a law guardian is to represent the child's wishes and protect their interests throughout the legal proceedings. This includes presenting the child's wishes to the judge and ensuring their legal rights are upheld. Law guardians also help the child understand the court process and keep them informed as the case progresses.

Law guardians work as part of a team of professionals, including investigators and clerical staff, to gather information and evidence to support the child's case. They are required to maintain confidentiality in their dealings with the child and may request private meetings with the child, either at home or at school.

In addition to representing the child in court, law guardians also provide legal advice and counsel to the child, helping them to make informed decisions and participate fully in court hearings. They also assist the child in understanding their legal rights and the implications of the court proceedings.

It is important to note that law guardians are separate from the attorneys representing the parents or guardians of the child, ensuring that the child's interests are independently represented and protected.

Qualifications and requirements

To become a legal guardian in New Jersey, you must meet certain qualifications and follow specific procedures. Here are the key requirements and steps to become a legal guardian:

Qualifications:

• Relationship with the Alleged Incapacitated Person (AIP): The proposed guardian must have "standing," which means they should be a spouse, adult child, family member, friend, or neighbour of the AIP. Alternatively, they can be a professional guardian with special training in guardianship.
• Competency and Capacity: The proposed guardian should be competent and capable of making decisions on behalf of the AIP. They must also have the time and willingness to take on the responsibilities of guardianship.
• No Criminal Record: While a criminal record may not automatically disqualify someone from becoming a guardian, it is a factor that the court considers when deciding on the appointment of a guardian.

Requirements:

• Obtain Medical Reports: Two medical reports are required to initiate the process of becoming a legal guardian. One report must be from a licensed physician (M.D.), and the other can be from either another physician or a licensed psychologist. These reports should certify that the AIP is incapacitated and unable to make decisions regarding their health, finances, or personal affairs.
• File a Petition: The person seeking guardianship must file a petition with the county Surrogate's Office in the county where the AIP lives. The petition should include a Verified Complaint Form, Certification of Assets, and a proposed guardian's Certification of Criminal and Civil Judgment History.
• Court Hearing: The court will review the petition and medical reports. If the court finds the AIP incapacitated, a hearing will be scheduled. The AIP will be assigned an attorney, who will interview them and others involved in their care. The attorney will then write a report for the court, advocating for the AIP's best interests.
• Prove Incapacity: During the court hearing, the petitioner must prove that the AIP is incapacitated and needs a guardian. This typically involves presenting evidence and testimony from medical professionals.
• Appointment of Guardian: If the court is satisfied that the AIP is incapacitated and the proposed guardian is suitable, the judge will issue a written judgment appointing the guardian.
• Qualify with the County Surrogate: Within 30 days of the judgment, the appointed guardian must qualify with the county surrogate by signing acceptance papers, acknowledging receipt of guardianship training, and posting a surety bond if ordered by the judge.
• Obtain Letters of Guardianship: These letters serve as official documentation of the guardian's authority to act on behalf of the AIP. They should be kept securely and not distributed.
• Reporting and Record-Keeping: Guardians are required to periodically file reports with the court, detailing the AIP's well-being, finances, and any other relevant information. Detailed financial records must be maintained, and the guardian is responsible for demonstrating proper management of the AIP's assets.
• Compensation: Guardians of the estate are entitled to compensation for their efforts and can apply to the court for reimbursement of certain expenses, including out-of-pocket costs, court fees, and attorney fees. However, they cannot receive fees or gifts from the AIP without prior court approval.

The process of becoming a law guardian

The process of becoming a legal guardian in New Jersey can be complex and time-consuming, but it is a necessary step to protect the interests of those who cannot make decisions for themselves. Here is a detailed outline of the steps involved in becoming a legal guardian.

Step 1: Determine the Need for Guardianship

The first step is to identify if guardianship is indeed necessary. This usually arises when an individual can no longer make informed and reasonable decisions about their personal, financial, legal, or medical affairs. This could be due to intellectual disability, physical illness, or other incapacitating factors.

Step 2: Obtain Medical Reports

To initiate the legal process, you will need to obtain reports from two doctors, one of whom must be an M.D., and the other can be a psychologist. These medical professionals will examine the allegedly incapacitated person (AIP) and provide a conclusion about their condition and ability to make decisions.

Step 3: File a Petition with the Court

You will need to file a petition with the county Surrogate's Office, and the case will be heard in the Superior Court. The petition should include the necessary medical reports, an Adult Guardianship Case Information Statement (CIS), and a Verified Complaint Form, which outlines why the AIP needs a guardian.

Step 4: Provide Financial Information

As part of the petition, you will need to provide detailed financial information about the AIP. This includes a Certification of Assets, listing all their property and income, and a Certification of Criminal and Civil Judgment History for the proposed guardian.

Step 5: Court Review and Hearing

The court will review the petition and supporting documents. If the court is satisfied, it will set a hearing date and appoint an attorney for the AIP. The court-appointed attorney will interview the AIP, review their situation, and make recommendations to the court.

Step 6: Guardianship Hearing

During the hearing, the judge will consider the evidence presented and make a decision. The proposed guardian must demonstrate "standing," which means they have a meaningful relationship with the AIP, such as a spouse, adult child, family member, friend, or professional guardian.

Step 7: Court Decision

If the court determines that the AIP is incapacitated and needs a guardian, it will issue a written judgment naming the guardian. At this point, the appointed guardian must qualify with the county surrogate within 30 days of the judgment.

Step 8: Post-Appointment Requirements

Once appointed, the guardian must follow certain requirements, such as signing acceptance papers, completing background screening, and posting a surety bond to protect the AIP's assets. The guardian is also entitled to compensation for their efforts and can apply to the court for reimbursement of various expenses.

Step 9: Ongoing Reporting and Oversight

Guardians are subject to ongoing reporting requirements and must periodically submit reports to the court, detailing the well-being and finances of the person under guardianship. Friends and family of the AIP also have the right to check on the guardianship and request a review of financial records.

It is important to note that each case is unique, and there may be variations or additional steps in the process of becoming a legal guardian in New Jersey. Consulting with an attorney who specializes in guardianship law is highly recommended to ensure that all necessary steps are followed correctly.

Responsibilities and limitations

A law guardian in New Jersey is a specially trained lawyer chosen by a judge to represent a child in court when they are involved with the Division of Child Protection and Permanency (DCPP) and are removed from their homes because their parents are unable to care for them. The law guardian speaks to the judge on behalf of the child, conveying their wants and needs. They also help the child understand the court proceedings and explain the choices available to them.

The law guardian has a duty to act in the child's best interests and protect their legal rights throughout the legal process. They work as part of a team of professionals, including investigators and clerical staff, to gather information and evidence to support the child's case. The law guardian must maintain confidentiality in their interactions with the child and may request private meetings with the child at home or school.

In addition to representing the child in court, the law guardian also provides legal advice and counsels the child on the most realistic course of action to protect their safety and advance their wishes and interests. They assist the child in fully participating in court hearings and ensure that the child remains informed as the case progresses through the child welfare system.

The law guardian's role is to advocate for the child's best interests and ensure their rights are protected. They do not make decisions on behalf of the child but rather guide and support them in making their own decisions. The law guardian must also follow court rules and file periodic reports, providing updates on the child's well-being and the overall progress of the case.

It is important to note that the law guardian's responsibilities are limited to the scope of the court proceedings and the child's legal rights within those proceedings. They are not responsible for making or influencing the judge's decisions but rather ensuring that the child's voice is heard and their rights are upheld.

Furthermore, the law guardian's role may be subject to limitations based on the specific circumstances of each case. For example, if a child's wishes or interests differ significantly from those of their siblings, a separate law guardian may be appointed to represent the siblings. Additionally, the law guardian must respect the child's confidentiality and cannot share information disclosed by the child without their permission.

In conclusion, the responsibilities of a law guardian in New Jersey primarily revolve around representing and protecting the legal rights of children involved in court cases due to their parents' inability to care for them. They provide legal counsel, ensure the child understands the proceedings, and help them participate fully in court. While the law guardian advocates for the child's best interests, they do not make decisions on their behalf but rather guide and support the child in making their own choices.

Payment and compensation

A Law Guardian in New Jersey is entitled to compensation for their work. The compensation structure is based on the total value of the estate. In addition, Law Guardians can receive a percentage of any income.

Law Guardians can also apply to the court to cover:

• Out-of-pocket costs related to guardianship
• Court fees and other required fees
• Attorney fees for reasonable actions
• Paying for professional services (e.g. doctors, housecleaners)

It is important to note that Law Guardians cannot receive fees or other payments from the person under guardianship unless specifically ordered by the court. Additionally, they cannot receive gifts from the person under guardianship without prior court approval. Law Guardians must also keep detailed financial records and may need to show proof of expenses, as friends and family members of the person under guardianship have the right to review financial records.

In the case of professional guardians, who are paid out of the ward's funds, court approval is required. The guardian in New Jersey never has to use their own money to take care of someone; they are responsible for paying the ward's bills out of the ward's money. If the ward has insufficient assets or income, public assistance may be necessary.

Frequently asked questions